Are You Prepared to Meet the May 7, 2019 Regulatory Deadline for Remedial Actions?

January 9, 2019 | No Comments
Posted by Marc D. Policastro

Responsible parties have an affirmative obligation to remediate contaminated sites pursuant to New Jersey’s Site Remediation Reform Act (SRRA), enacted in 2009. For sites where the discharge was discovered prior to May 7, 1999, the initial deadline under SRRA to complete remedial investigation was May 7, 2014. Subsequent amendments to SRRA afforded a two (2) year extension of the remedial investigation deadline to responsible parties that applied to the New Jersey Department of Environmental Protection (NJDEP) for such an extension. A responsible party that either (a) did not obtain an extension of this deadline or (b) completed the remedial investigation, including submission of the remedial investigation report on or before May 7, 2014, must complete the remedial action by May 7, 2019, as set forth in New Jersey’s Technical Requirements for Site Remediation at N.J.A.C. 7:26E-5.8(b). Read more

Appellate Panel Countenances Beach Easement Condemnations for Federal Funding

December 27, 2018 | No Comments
Posted by Kyle Campanile

A New Jersey appeals court recently upheld the Township of Long Beach’s exercise of eminent domain to acquire beachfront access easements in the consolidated appeal of Twp. of Long Beach v. Tomasi, N.J. Super. App. Div. (per curiam) – the latest chapter in a series of disputes between coastal New Jersey municipalities and owners of beachfront property within those municipalities.

The Township of Long Beach sought federal funding pursuant to the “Sandy Act,” which authorizes the Army Corps of Engineers (“Army Corps”) to protect the New Jersey shoreline through beach replenishment and dune construction projects funded either in whole or in part by the federal government. See Disaster Relief Appropriations Act, 2013 (Sandy Act), Pub. L. No. 113-2, 127 Stat. 4. In order to obtain such federal participation and funding, the township was required to comply with conditions set forth in the Army Corps’ engineering regulations, including the requirement that participating municipalities provide “reasonable public access rights-of-way” to the beach, defined as “approximately every one-half mile or less.” U.S. Army Corps of Engineers, ER 1105-2-100, Planning Guidance Notebook 3-20 (2000); see also N.J.A.C. 7:7-16.9. Read more

CAFRA Centers: Toms River Current But Others Expiring?

September 7, 2018 | No Comments
Posted by Steven M. Dalton

The long awaited Toms River coastal/CAFRA center designation process is complete. DEP took action to accept the State Planning Commission’s changed planning area boundaries for Toms River, including its Regional Center and Core Community Development Boundaries in the coastal area. Notice of DEP’s acceptance of the planning area boundaries, as required under the Coastal Rules, was published August 6, 2018 and became operative September 5, 2018. These Center and Planning Area boundaries are now in effect for purposes of determining impervious cover and vegetative cover limits for Toms River sites that require CAFRA approval.

Under DEP’s Coastal Rules and the Permit Extension Act, the Toms River mainland coastal center expired late-2016. The expiration of mainland coastal centers significantly reduced the amount of allowable impervious cover available for development of sites in mainland coastal centers such as Toms River that are subject to CAFRA permitting from 80% to 3-30% depending upon the planning area designation of a parcel. With the recent regulatory action taken by DEP, sites in the Regional Center and six Core areas that require CAFRA approval qualify for 80% impervious cover. Read more

Submit All Required Forms and Documents Required by Municipal Ordinance for Your Application to Trigger the Time of Application Rule

June 26, 2018 | No Comments
Posted by Afiyfa H. Ellington

On June 20, 2018, the Supreme Court of New Jersey affirmed the Appellate Division decision in Dunbar Homes, Inc. v. Zoning Board of Adjustment of Franklin Township, which analyzes the “time of application” rule and reiterates that developers must submit all forms and all documents required by municipal ordinance in order to trigger the “time of application” rule.  Under the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -136, the “time of application” rule provides that “development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development…”  N.J.S.A. 40:55D-10.5.  The “time of application” rule was enacted in 2011 in order to prohibit municipalities from enacting ordinances in response to an application for development by a developer or property owner.  Read more

Court Establishes Affordable Housing Obligations for West Windsor and Princeton

March 9, 2018 | No Comments
Posted by John A. Sarto

Mercer County Superior Court Judge Mary Jacobson issued a 217 page decision and order on March 8, 2018 establishing the methodology and fair share affordable housing obligations for Princeton and West Windsor Township’s Third Round housing cycle. The decision follows a 40-day trial that took place between January and June of 2017.

Municipalities around the state that have yet to settle their cases have been awaiting this decision which outlines in detail the methodology used to calculate the number of affordable housing units that they will be obligated to satisfy should those cases proceed to trial. According to the Fair Share Housing Center there are more than 100 such towns.

The Mercer County case initially included eleven municipalities that filed declaratory judgment actions in 2015 seeking court approval of their Third Round Housing Elements and Fair Share Plans pursuant to the New Jersey Supreme Court’s decision Mount Laurel IV, 221 N.J. 1 (2015).   The actions were consolidated by Judge Jacobson for the purposes of determining the affordable housing need.  Six municipalities settled with the housing advocate Fair Share Housing Center, and three dismissed their complaints, leaving only Princeton and West Windsor in the consolidated case. Read more

NJ Appellate Division Upholds $225 Million NJDEP Settlement with Exxon Mobil for Natural Resource Damages, Grants Environmental Groups Right to Appeal

March 9, 2018 | No Comments
Posted by Melissa A. Clarke

In February 2018, New Jersey’s Appellate Division upheld a consent judgment that settled the New Jersey Department of Environmental Protection (NJDEP)’s claims against Exxon Mobil Corporation (Exxon) under the New Jersey Spill Compensation and Control Act to recover natural resource damages (NRD) for the Bayway refinery in Linden and another facility in Bayonne. The Exxon NRD decision, which is approved for publication, clarifies the law with respect to third-party intervention, standing, and citizen group appeals from settlements.

The consent judgment, entered after a lengthy bench trial, effectively settled NJDEP’s claims at the Bayway and Bayonne sites, sixteen other Exxon locations, and more than a thousand retail gas stations in this State in exchange for a record $225 million payment. Nonetheless, a state senator and several environmental organizations sought to intervene in the underlying litigation and subsequently appealed the trial court’s entry of the consent judgment. The Appellate Division found no reason to “second guess” the trial judge’s decision, given the extensive factual record that informed his decision, and further, having found “no authority prohibiting the transfer of the settlement proceeds or limiting their use, nor any authority that permits this court to wade into the budgetary waters,” declined to weigh in on the dedication or application of the settlement funds for environmental purposes.* Read more

Recent Developments in Site Remediation: Revised Soil Remediation Standards

February 28, 2018 | No Comments
Posted by Melissa A. Clarke

On September 18, 2017, the New Jersey Department of Environmental Protection (DEP) updated the soil remediation standards for nineteen contaminants. These changes, which took effect on September 18, 2017, are significant for persons responsible for remediating contaminated property, environmental professionals, and potential purchasers of contaminated sites, as the new standards may impact remediation requirements.  The impact of the new standards will depend primarily upon whether the site already has a Final Remediation Document and how much the revised standard(s) have changed. Read more

DEP Establishes Stringent Drinking Water Standards for Emerging Contaminants

February 28, 2018 | No Comments
Posted by Melissa A. Clarke

In November 2017, DEP announced stringent standards for the treatment of certain Per- and Polyfluoroalkyl Substances (PFAS), making New Jersey the first state to set formal Maximum Contaminant Levels (MCLs) requiring statewide testing of public drinking water systems for perfluorooctoanic acid (PFOA) and perfluorononanoic acid (PFNA). Historically, PFAS were used in a wide variety of industrial and commercial processes and products, including, but not limited to, electroplating and metal finishing (i.e., chromium plating), vapor/mist suppression, stain repellants, electronics, aerospace, automotive, insecticide/herbicides, adhesives/varnish/paints, as well as coatings for textiles such as fabric, rug, and paper.  PFASs are often found in the soil and groundwater at former manufacturing facilities, as well as sites where fire-fighting foams were used or tested.  New Jersey drinking water suppliers will now be required to test for PFOA and PFNA and take action to avoid or address exceedances of those MCLs.

Property Transfers Among Family Members Do Not Negate Innocent Party Status For Remediation Funding Grants

October 26, 2017 | No Comments
Posted by Steven M. Dalton

The cost to remediate contaminated sites can be significant and the scope of liability under environmental laws is deliberately broad.  In many cases under theories of strict, joint and several liability, property owners inherit liability for environmental contamination caused by predecessor owners.  The affirmative innocent purchaser defense is intended to provide a mechanism to limit such liability exposure.  However, under New Jersey law, innocent purchasers must complete all appropriate inquiry prior to property acquisition and complete remediation of known contamination to limit liability exposure with respect to later discovered environmental conditions.  Funding from the State may be an option in some cases to assist persons who qualify as innocent parties in completion of remediation activities.  The Hazardous Discharge Site Remediation Fund Innocent Party Grant is available to persons who acquire property prior to December 31, 1983, who continue to own that property until grant monies are released to them, and who did not cause the environmental condition or use the types of substances that require remediation.

The recent case of Cedar Knolls 2006, LLC v. NJDEP addressed the question of whether intrafamilial transfers occurring after 1983 negate the ability to qualify for innocent party grant funding for remediation. The Appellate Division held that the transfer of property among family members prior to distribution of the grant monies and after 1983 did not negate the ability of the applicant to qualify as an innocent party for purposes of an innocent party grant. Read more

Appellate Division Reaffirms Position that Pinelands Protection Act Supersedes the Municipal Land Use Law

October 18, 2017 | No Comments
Posted by Steven W. Ward

In a recent unpublished decision, Peg Leg Webb, LLC v. New Jersey Pinelands Commission, A-4016-15T4 (Unpub. App. Div. October 11, 2017), a panel of the Superior Court of New Jersey, Appellate Division, reaffirmed that the Pinelands Protection Act (Act), as well as any regulations or authorities promulgated thereto, supersede any authority vested under the municipalities by the Municipal Land Use Law (MLUL).  Specifically, the court found that the Comprehensive Management Plan (CMP), adopted by the Pinelands Commission (Commission), supersedes a land use approval issued by a municipal planning board.

In this case, the Commission recommended that certain property in Jackson Township (Township) be rezoned from Rural Development (RD) to Forest Area (FA), which rezoning was subsequently adopted in 2005.  The Township’s rezoning was challenged and the trial court invalidated the rezoning for lack of proper procedure.  In 2012, the petitioner obtained preliminary site plan approval for a resource extraction facility from the Township’s Planning Board, which assumed the property was still zoned RD.  Importantly, resource extraction was a permitted conditional use in the RD zone, but not permitted within the FA zone.  The approval was examined by the Commission, which “called up” the approval for review.  After a hearing before an Administrative Law Judge (ALJ), the Commission adopted the ALJ’s decision, which held that the trial court’s invalidation of the municipal rezoning “did not change the designation of the subject property from RD to FA on the CMP’s land capability map.” (See p. 8).  Further, the Commission’s opinion found that the invalidation of the rezoning placed the municipality out of compliance with the CMP and the Township should have either passed another ordinance, or in the alternative, applied to the Commission for certification of the prior ordinance.  Accordingly, the Commission held that the approval was properly “called up” by the Commission.

The petitioner appealed the Commission’s decision to the Superior Court of New Jersey, Appellate Division.  In its decision, the court reaffirmed the legal precedent that “the Act and the regulations promulgated under it supersede the MLUL.” (See p. 11).  In doing so, the court found that “the ordinance was not in compliance with the CMP, and the CMP trumps the ordinance.” (See p. 11).